Language by its very nature is imperfect and imprecise. On top of its inherent ambiguity, we are constantly using language in new and inventive ways adding to the trail of confusion. A recent Consumer Reports car review described a vehicle as having undergone, “a fast and furious makeover.” To most American readers that reference is likely to conjure up the image of a street-racing car but to someone unfamiliar with the film series that phrase is likely to lead to confusion – wondering why the car designers were rushed or angry. While cultural references may add to the confusion of language, they also give it spice and make it more vibrant and interesting but, as you may have guessed, all of this leads to trouble in court proceedings.

Enter into the mix the new world emojis – those adorable (or annoying) little icons some folks use to add color to their digital messages. While emojis have grown exponentially from their simple, smiley-face beginnings, confusion over their meaning has been a real source controversy, leading judges and juries to have to decipher them in order to put a message into context. The American Bar Association Journal has published a number articles highlighting this interesting social phenomenon and the problem it presents for courts – it may seem silly but as pointed out in the article linked below, courts are increasingly having to decide whether those symbols should be “interpreted as literal portrayals of the sender’s thoughts and intentions for purposes of criminal conviction?”

Some of you may have heard of Silk Road, the Amazon for criminals in the dark web. During the trial of convicted Silk Road operator, Ross William Ulbricht, the defense objected when the prosecution attempted to publish chats and forums posts without the emojis that accompanied them; the defense successfully argued to the court that removing the emojis altered the meaning of the message.

The problem emojis and their meaning is probably best presented by the case of a 17 year old New Yorker who posted a FaceBook message which could be interpreted as implying violence towards law enforcement. For emphasis the young man added emojis of a policeman and three guns pointed at him. For emphasis the police arrested him for making a terrorist threat — and while a grand jury refused to indict him, very real reputational and financial damage was incurred by him as a result of his post and the emphasis provided by the emojis.

Like all social trends, the courts will likely catch up and we will develop conventions to deal with the significance of emojis. Until then, keep in mind that just like words are not really “spicy” or have “color,” emojis, just like the use of such language, add to the confusion – but then again, colorful, spicy, fun language is a tasty slice of life – even if a little confusing.